Wednesday, April 29, 2009

Tenenbaum seeks rehearing en banc on webcast

Joel Tenenbaum has filed a petition for rehearing en banc in the First Circuit, once again asking the court of appeals to permit the live webcast of an upcoming district court motion hearing in the record labels' copyright suit against him. The move follows the First Circuit's April 16 decision holding that District Judge Nancy Gertner lacked the authority under the District of Massachusetts local rules to permit an Internet broadcast from her courtroom.

Tenenbaum petition for rehearing en banc re webcast
I consider the petition for rehearing by the full First Circuit very unlikely to be granted. As I've previously explained:
Under Federal Rule of Appellate Procedure 35(a), taking a case en banc requires a vote of a majority of the circuit's active, non-recused judges. There are only five such judges in the First Circuit, two of whom -- Juan Torruella and Kermit Lipez -- were on the Tenenbaum panel. So, the likeliest scenario to get to a majority would be for all three of Chief Judge Sandra Lynch, Judge Michael Boudin, and Judge Jeffrey Howard to vote for en banc -- a long long-shot. (Even unlikelier would be for either Torruella or Lipez, who just signed on to the no-webcast opinion, to flip.)
On substance, FRAP 35(a) says that rehearing en banc is "not favored," and is only supposed to occur where: 1) "necessary to secure or maintain uniformity of the court’s decisions" or 2) "the proceeding involves a question of exceptional importance." It's very tough to argue that the decision conflicts with a prior First Circuit decision (and Tenenbaum does not appear to rely on this prong). And, as much as I'd like there to be a webcast, I think it's a stretch to say that this is a "question of exceptional importance." Remember: the courtroom will still be open to the public and press, and cameras are virtually never allowed in federal courtrooms, so the First Circuit's decision does not represent a departure from normal practice.

Back in the district court, Tenenbaum has filed a motion to stay tomorrow's important motion hearing, at which Judge Gertner will consider numerous issues, including a constitutional challenge by Tenenbaum to the Copyright Act's statutory damages provisions, and the viability of Tenenbaum's abuse of process counterclaim against the labels. Tenenbaum asks the district court to postpone the hearing until the First Circuit acts on the petition for rehearing on the webcast. The motion indicates that the labels oppose such a stay. Will Judge Gertner grant it? I'm not sure. On one hand, the issue becomes moot (at least as to this hearing) as of Thursday, so she may view a short delay to permit the First Circuit to rule as reasonable. On the other hand, Tenenbaum filed his petition for rehearing on April 28 -- just 2 days before the scheduled district court hearing. I could certainly envision Judge Gertner saying, "If you wanted a ruling from the First Circuit before the 30th, you should have filed your petition much sooner."

UPDATE: Judge Gertner today postponed the April 30 hearing until June 5, which will give the First Circuit plenty of time to rule on the petition for rehearing.

(Disclosure: I signed on to an amicus brief in support of the webcast.)

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